STATE OF NEW JERSEY v. PETER J. DITO

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2699-16T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
PETER J. DITO,
Defendant-Respondent.
__________________________________________
Argued November 14, 2017 – Decided January 11, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Municipal Appeal
No. 16-40.
Annmarie Cozzi, Senior Assistant Prosecutor,
argued the cause for appellant (Gurbir S.
Grewal, Bergen County Prosecutor, attorney;
Annmarie Cozzi and Elizabeth R. Rebein,
Assistant Prosecutor, of counsel and on the
briefs).
E. Gregory M. Cannarozzi argued the cause for
respondent (Law Office of E. Gregory M.
Cannarozzi, attorney; E. Gregory M. Cannarozzi
and Jordan D. Yuelys, of counsel and on the
brief).
PER CURIAM
The State of New Jersey appeals from an order entered by the
Law Division on January 23, 2017, which dismissed a summons
charging defendant Peter J. Dito with refusing to submit to a
breath test to measure the alcohol level of his blood because the
summons cited
N.J.S.A. 39:4-50.2 rather than
N.J.S.A. 39:4-50.4a.
We reverse.
On December 13, 2015, an officer of the Oradell Police
Department (OPD) issued to defendant Summons No. 0244-E15-002005
for driving while intoxicated (DWI), contrary to
N.J.S.A. 39:4-
50, and Summons No. 0244-E15-002007 for refusing to submit to a
breath test, contrary to
N.J.S.A. 39:4-50.2. Defendant moved to
dismiss the refusal charge on the ground that the summons
referenced
N.J.S.A. 39:4-50.2 rather than
N.J.S.A. 39:4-50.4a.
On April 21, 2016, the municipal court judge denied
defendant's motion. Defendant then pled guilty to both charges,
reserving the right to appeal the court's denial of his motion to
dismiss the refusal charge. Defendant provided a factual basis for
the pleas. He admitted that on December 13, 2015, at approximately
7:36 p.m., he operated a vehicle while under the influence of
alcohol, after drinking wine with his dinner.
Defendant stated that he was stopped by an officer of the
OPD, who asked him to perform certain physical tests, after which
the officer placed him under arrest for DWI. The officer
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transported defendant to Oradell's police headquarters. There, the
officer read the Attorney General's standard statement for motor
vehicle operators, pursuant to
N.J.S.A. 39:4-50.2(e), which
informed defendant that the law required him to submit samples of
his breath "for the purpose of testing to determine alcohol
content." The statement indicated that if defendant refused to
provide the breath samples, "you will be issued a separate summons
for the refusal" and the "court may find you guilty of both refusal
and [DWI]."
The statement also informed defendant of the penalties that
the court could impose if he is found guilty of refusal, which
include a license revocation for up to twenty years, a fine of up
to $2000, installation of an ignition interlock, and referral to
an Intoxicated Driver Resource Center (IDRC). In addition, the
statement indicated that defendant did not have a right to have
an attorney, physician, or other person present for the purpose
of taking the breath test.
Defendant told the municipal court judge that the officer
asked him to provide breath samples and he refused. After defendant
stated that he wanted a lawyer, the officer then read an additional
paragraph from the Attorney General's standard statement:
Your answer is not acceptable. The law
requires that you submit samples of your
breath for breath testing. If you do not
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answer, or answer with anything other than
"yes," I will charge you with refusal. Now, I
ask you again, will you submit to breath
testing?
Defendant responded, "No, I need advice" and "I don't know what
to do."
The municipal court judge accepted defendant's plea and
sentenced defendant on both charges. For the refusal charged in
Summons No. 0244-E15-002007, the judge sentenced defendant to a
$306 fine, $33 in court costs, a $100 Drunk Driving Enforcement
Fund surcharge, twelve hours in an IDRC, and a seven-month license
suspension. For the DWI charged in Summons No. 0244-E15-002005,
the judge sentenced defendant to a fine of $256, $33 in court
costs, a $50 fee for the Violent Crimes Compensation Board, a $125
DWI surcharge, a $75 Safe Neighborhood Fund assessment, a $100
Drunk Driving Enforcement Fund surcharge, twelve hours in an IDRC,
and a three-month license suspension, to run concurrent with the
license suspension imposed for the refusal.
Thereafter, defendant filed an appeal to the Law Division and
argued that the municipal court judge erred by denying his motion
to dismiss the refusal charge. The Law Division judge considered
the appeal, and on January 9, 2017, placed an oral decision on the
record.
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The judge found that defendant's summons for refusal to submit
the breath test had incorrectly cited
N.J.S.A. 39:4-50.2. The
judge stated that because the summons should have cited
N.J.S.A.
39:4-50.4a. The judge concluded that the error was fatal because
it failed to inform defendant of the nature of the charge against
him.
The judge entered an order dated January 23, 2017, which
dismissed Summons No. 0244-E15-002007, and re-affirmed the
sentence that the municipal court judge had imposed on Summons No.
0244-E15-002005. The State's appeal followed.
On appeal, the State argues that the Law Division judge erred
by dismissing the summons because it cited
N.J.S.A. 39:4-50.2,
rather than
N.J.S.A. 39:4-50.4a. The State contends the summons
provided defendant with adequate notice of the charge and the
penalties he faced if found guilty of refusal.
In response, defendant argues that the Law Division judge
correctly decided to dismiss the refusal charge. He argues that
because the summons cited
N.J.S.A. 39:4-50.2 rather than
N.J.S.A.
39:4-50.4a, he was deprived of his constitutional right to due
process. Defendant contends he was not properly apprised of the
penalties for refusal or given the opportunity to defend himself.
When reviewing a decision on a municipal appeal to the Law
Division, we defer to the trial court's fact finding if "the
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findings made could reasonably have been reached on sufficient
credible evidence present in the record." State v. Kuropchak,
221 N.J. 368, 382-83 (2015) (quoting State v. Johnson,
42 N.J. 146,
162 (1964)). However, we owe no deference to the trial court's
decision on an issue of law "and the consequences that flow from
established facts[,]" which we review de novo. State v. Hubbard,
222 N.J. 249, 263 (2015).
We begin our consideration of the appeal with the language
of the relevant statutes.
N.J.S.A. 39:4-50.2 provides in pertinent
part that:
[a]ny person who operates a motor vehicle on
any public road, street or highway . . . shall
be deemed to have given his consent to the
taking of samples of his breath for the
purpose of making chemical tests to determine
the content of alcohol in his blood; provided,
however, that the taking of samples is made .
. . at the request of a police officer who has
reasonable grounds to believe that such person
has been operating a motor vehicle in
violation of the provisions of [N.J.S.A.]
39:4-50 . . . . No chemical test . . . may be
made or taken forcibly against physical
resistance thereto by the defendant. The
police officer shall, however, inform the
person arrested of the consequences of
refusing to submit to such test in accordance
with section 2 [N.J.S.A. 39:4-50.4a] of this
amendatory and supplementary act. A standard
statement, prepared by the chief
administrator, shall be read by the police
officer to the person under arrest.
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In addition,
N.J.S.A. 39:4-50.4a provides that "the municipal
court shall revoke the right to operate a motor vehicle of any
operator who, after being arrested for [DWI] . . . refuse[d] to
submit to a [chemical test] provided for in section 2 of . . .
[N.J.S.A. 39:4-50.2] when requested to do so." In determining
whether a person is guilty of refusal,
[t]he municipal court shall determine . . .
whether the arresting officer had probable
cause to believe that the person had been
driving or was in actual physical control of
a motor vehicle . . . while the person was
under the influence of intoxicating liquor or
a narcotic, hallucinogenic, or habit-inducing
drug or marijuana; whether the person was
placed under arrest . . . and whether he
refused to submit to the test upon request of
the officer; and if these elements of the
violation are not established, no violation
shall issue.
[Ibid.]
In State v. Marquez, the Court stated that "[t]o identify all
of the elements of a refusal offense, we must look at the plain
language of both statutes because although they appear in different
sections, they are plainly interrelated."
202 N.J. 485, 501 (2010).
The Court stated that because
N.J.S.A. 39:4-50.2 and
N.J.S.A.
39:4-50.4a "cross-reference one another internally" and "rely on
each other substantively[,]" the statutes "must therefore be read
together." Id. at 502. The Court noted that:
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[a] careful reading of the two statutes
reveals four essential elements to sustain a
refusal conviction: (1) the arresting officer
had probable cause to believe that defendant
had been driving or was in actual physical
control of a motor vehicle while under the
influence of alcohol or drugs; (2) defendant
was arrested for driving while intoxicated;
(3) the officer requested defendant to submit
to a chemical breath test and informed
defendant of the consequences of refusing to
do so; and (4) defendant thereafter refused
to submit to the test.
[Id. at 503 (citing
N.J.S.A. 39:4-50.2(e),
39:4-50.4a(a); State v. Wright,
107 N.J. 488,
490 (1987)).]
The Marquez Court held that reading the standard statement
is a necessary element of a refusal conviction, and rejected the
contention that the procedural safeguards of
N.J.S.A. 39:4-50.2
are not a substantive element of the refusal offense. Id. at 506.
The Court stated that "[t]he fact that motorists are deemed to
have implied their consent, pursuant to [N.J.S.A. 39:4-50.2], does
not alter that conclusion." Ibid. The Court held that
N.J.S.A.
39:4-50.2 and
N.J.S.A. 39:4-50.4a "impose an obligation on
officers to inform drivers of the consequences of refusal." Ibid.
We note that in State v. Cummings, the Court held that a
conviction of refusal requires proof beyond a reasonable doubt.
184 N.J. 84, 89 (2005). In Cummings, the Court observed that
N.J.S.A. 39:4-50.4a is the "exact statutory provision applicable
to breathalyzer refusal cases," and that "care should be taken to
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list . . .
N.J.S.A. 39:4-50.4a in the summons charging refusal."
Id. at 90 n.1.
The Cummings Court did not, however, hold that dismissal is
required when the summons cites
N.J.S.A. 39:4-50.2 rather than
N.J.S.A. 39:4-50.4a. Ibid. (finding "no prejudice resulting from
it"). Indeed, such a conclusion would be inconsistent with the
Court's later decision in Marquez, where the Court held that the
elements of the refusal offense are drawn from both
N.J.S.A. 39:4-
50.2 and
N.J.S.A. 39:4-50.4a. Marquez,
202 N.J. at 502.
Thus, in this case, the trial court erred by finding that the
summons issued was fatally flawed because it failed to cite
N.J.S.A. 39:4-50.4a. Since the elements of refusal are found in
both
N.J.S.A. 39:4-50.2 and
N.J.S.A. 39:4-50.4a, the citation of
only the former statute does not require dismissal of the summons.
Dismissal of the charges under these circumstances would exalt
form over substance, an approach our courts have "properly
rejected." State v. Fisher,
180 N.J. 462, 472 (2004).
Furthermore, the trial court erred by finding that defendant
was prejudiced and denied due process because he was charged under
N.J.S.A. 39:4-50.2 rather than
N.J.S.A. 39:4-50.4a. Here, the
record shows that the officer read defendant the Attorney General's
standard statement, thereby informing defendant that if he failed
to submit to the breath test, he would be charged with refusal.
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The standard statement further informed defendant of the
penalties that the court could impose if he is found guilty of
refusal. Moreover, after defendant indicated he wanted to speak
with an attorney, the officer read defendant the additional
paragraph from the standard statement, which indicated that his
answer was not acceptable.
Therefore, defendant was fully informed of the charge and the
penalties that could be imposed if he refused to provide the breath
samples. Defendant's claim that he could not defend himself against
the charge has absolutely no support in the record and does not
warrant further comment. R. 2:11-3(e)(2).
Reversed and remanded for entry of a judgment reinstating
defendant's conviction and sentence on Summons No. 0244-E15-
002007. We vacate any stay of the sentence previously imposed. We
do not retain jurisdiction.
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